Saturday, November 17, 2007

Rod v. Illinois

For over a week, I have maintained that everything about how the Administration rolled out its attempted expansion of FamilyCare smacked of an intention to create a legal confrontation with the General Assembly.

My initial inclination was that a lawsuit would be filed challenging the authority of JCAR. Had I thought it through more thoroughly, however, I should have seen this coming.
On Tuesday, the legislature's Joint Committee on Administrative Rules turned down the state Department of Healthcare and Family Services' request for an emergency expansion of the Family Care program. The bipartisan panel of lawmakers was established in 1977 to oversee rules proposed for state programs. Its decisions generally are followed.

A spokeswoman for Gov. Rod Blagojevich contended Friday, however, that the committee does not have the ability to stop the Family Care expansion.

"JCAR's role is merely advisory - it does not have the constitutional authority to suspend the regulation," Abby Ottenhoff said in an e-mail...

Ottenhoff would only say that the governor's office has no plans of its own to challenge the committee's authority in court.

In other words, the Administration has decided to ratchet up its disregard and contempt for the Legislature, the Illinois Constitution, and by extension, the citizens of Illinois, by going forward with plans to provide expanded health care coverage despite a clear question as to their authority to do so, and despite the JCAR's suspension of the HFS emergency rule.

Let me repeat what I have said in previous posts AGAIN - I emphatically support expanded access to health care. My issue here is procedural and Constitutional.

For the sake of argument, let's assume that there is a legitimate question as to the authority of the Administration to take this path of action, and a legitimate question as to the authority of JCAR to block it. Common sense and decency (both increasingly dwindling commodities in our state capitol) would dictate that a binding legal determination be had BEFORE any attempts to enroll any new FamilyCare participants.

Failure to do so creates a situation in which patients may seek medical care believing that they have coverage only to later learn that they were mistaken (misled?). Health care providers are similarly jeopardized since they have no way of knowing whether a FamilyCare patient is a legitimate one, or one whose status is uncertain. Ironically, this could well lead to providers refusing to treat qualifying patients due to eligibility questions.

In light of this, for the Administration to proceed without clear authority in this critical arena is a reckless and irresponsible course of action.

If the Administration would put as much effort into building support within the Legislature as it has in trying to find ways to subvert the process, these issues would likely not exist, and other crucial matters such as mass transit funding and a capital bill may have been resolved months ago.

What next? I can't say for sure. But I would surmise that there exist at least two questions that are ripe for review. First, does JCAR have the authority to suspend the administrative rule at issue? Second, and tangentially related, does the Administration, through HFS, have the authority to undertake this action or does the expansion amount to an unauthorized attempt to expend unappropriated funds.

This is not a bright day for state government, nor for the people that we represent.

UPDATE - Aaron Chambers also has a good article on the subject.

16 Comments:

At November 17, 2007 at 11:52 AM, Anonymous Anonymous said...

Rep. Fritchey:
Congratulations to you for putting our state's constitution and procedure before personal agendas. This may be the first time two ideologically polar opposites agree, but for what better purpose could it happen? We applaud your efforts.
Fran Eaton, Editor, Illinois Review.com

 
At November 17, 2007 at 11:58 AM, Blogger Rep. John Fritchey said...

Fran,

I have long maintained that there are issues that are bigger than any of us. The primacy of the Constitution is clearly one of those.

Even if the Administration's actions were somehow found to be permissible, I simply don't believe that this is the right means by which to put those actions to test.

(And don't worry, I'm sure that we will still find plenty to disagree about :) )

 
At November 17, 2007 at 1:01 PM, Anonymous here we go again said...

This is the Governor's version of the Courthouse Full Employment Act, he's a walking lawsuit machine.

Not sure that he's actually won any of the lawsuits, but that doesn't seem to be stopping him.

 
At November 17, 2007 at 2:42 PM, Anonymous Budget Watcher said...

Representative Fritchey,

I've attached the ILCS citation for classes of persons eligible for medical assistance under the Public Aid Code

(305 ILCS 5/5‑2) (from Ch. 23, par. 5‑2)
Sec. 5‑2. Classes of Persons Eligible. Medical assistance under this Article shall be available to any of the following classes of persons in respect to whom a plan for coverage has been submitted to the Governor by the Illinois Department and approved by him:
1. Recipients of basic maintenance grants under
Articles III and IV.
2. Persons otherwise eligible for basic maintenance
under Articles III and IV but who fail to qualify thereunder on the basis of need, and who have insufficient income and resources to meet the costs of necessary medical care, including but not limited to the following:

The rest of the section defines which persons are expressly eligible. However, it's 2 above that includes the conditional language 'including but not limited to the following:' that would appear to give the Governor the legislative authority to approve additional classes of eligibles.

 
At November 17, 2007 at 2:54 PM, Anonymous Anonymous said...

From the ILCS, the Section of the Public Aid Code that defines eligible classes for medical assistance:

(305 ILCS 5/5‑2) (from Ch. 23, par. 5‑2)
Sec. 5‑2. Classes of Persons Eligible. Medical assistance under this Article shall be available to any of the following classes of persons in respect to whom a plan for coverage has been submitted to the Governor by the Illinois Department and approved by him:
1. Recipients of basic maintenance grants under Articles III and IV.
2. Persons otherwise eligible for basic maintenance under Articles III and IV but who fail to qualify thereunder on the basis of need, and who have insufficient income and resources to meet the costs of necessary medical care, including but not limited to the following:

The rest of the cited section expressly defines eligible classes. However, it's the last qualifier in 2 above that would appear to leave the Governor with discretion to approve additional classes. Specifically, the phase "including but not limited to the following" that is in state statute governing medical assitance eligibility.

 
At November 17, 2007 at 3:38 PM, Anonymous Anonymous said...

I wonder if Reps. Mulligan and Hastert support Rod in this latest outrage since they voted to let him have his was in JCAR?

 
At November 17, 2007 at 4:56 PM, Anonymous John said...

There are two competing arguments:

1) The administration violated the law by doing such a large expansion over JCAR objections.

2) JCAR's decision was invalid because it would have suspended a rule that the department clearly has statutory authority to issue.

I think I might side with the administration on this one on constitutional grounds. Primarily because it appears that the legislature already gave the executive branch the authority to make this administrative change.

Think of it this way in this hypothetical:

1) The General Assembly passes a law allowing the administration to give away cupcakes.

2) The Department of Bakery files the appropriate administrative rule needed to distribute these cupcakes.

3) JCAR (a 12-member body), usurps the authority of the General Assembly and the executive branch and blocks the cupcakes from being distributed.

I know I could have used a hypothetical that I would have disagreed with, but this was easier.

According to what I read in the rule, the administration clearly was given the authority by the legislature to make this change.

The only thing the legislature can do now is to change the statute to get rid of the authority the administration has now.

 
At November 17, 2007 at 5:25 PM, Anonymous Bookworm said...

So Blago is basically telling JCAR, "I TRIPLE DOG DARE YOU to sue me and place your constitutional tongue on the flagpole."

 
At November 18, 2007 at 9:19 AM, Anonymous Anonymous said...

The best point that you raise is that if the Governor thinks that JCAR doesn't have the ability to stop him, he should get a ruling from the courts BEFORE moving forward.

He is playing games with people's LIVES.

Somebody please stop this man.

 
At November 18, 2007 at 2:42 PM, Anonymous his hypocrisy knows no bounds said...

"john," your cupcake argument is flawed, hypothetical as it is.

JCAR is not "blocking" health care coverage from being offered. With or without the governor's arrogant end-run around the legislature, FamilyCare is still available to thousands of working families.

By far the most laughable part of this story is when the adminstration backed up its actions by referencing Gov. Thompson's veto of the JCAR authority, in which he argued for a separation of powers. Hmm. Separation of powers. How about practicing what you preach, Rod?

 
At November 18, 2007 at 6:43 PM, Anonymous John said...

his hypocrisy -

The analogy isn't flawed. I'll give you a hint - the cupcakes don't matter.

What matters was the point that the General Assembly set a law that allows the executive branch to do something. The executive branch acted within the law to do it.

And now a 12-member panel decided to overrule the 118 member house, the 59 member senate, and the executive branch. That was the analogy, yet you get stuck on the cupcakes.

 
At November 18, 2007 at 9:17 PM, Anonymous Anonymous said...

State employees saw this coming from away off, as the need for printed material for Family Care, All Kids, Senior Care, etc., were all ratched up this past month. I'll say one thing for our infamous governor, he is single-minded. Most narcissists are.

 
At November 19, 2007 at 6:27 AM, Anonymous Budget Watcher said...

John,

After reading the Public Aid Code, I think that the Governor may have the authority to unilaterally create medical assistance eligibity classes. However, he has an obligation to the citizens of Illinois and their elected representatives of the General Assembly to ensure that appropriate funding is secured to pay for these classes. This is where I have a major problem with his methods.

Also, it's not clear to me if he's challenging JCAR's oversight authority in general, or just as it applies to the issue of medical eligibility.

 
At November 19, 2007 at 7:17 AM, Anonymous Four Words said...

Blagojevich is bankrupting Illinois!

 
At November 19, 2007 at 8:23 AM, Anonymous Truthful James said...

What we have here is an arrogation of power by the Executive compounded by the failure of the lawyered up legislature to write a clear statute.

The question is, who sues the governor -- who bells the cat? If the legislature fails to act There is scant diffeence between it and the Yugoslav legislative body under its own dictator and the Reichstag under Herr Hitler.

The governor is trying to find a constituency under which he could be reelected in 2010. That is the simple truth of it.

 
At January 18, 2008 at 8:43 AM, Anonymous A Tax Paying Citizen said...

"I think at the end of this year, the governor will be the poster child for CORRUPTION!
What ever happened to the judge's order to free up Rod's federal subpoenas?

White collar crime pays in Illinois, just ask Rod!

 

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